United States v. Antonio Quevedo

FILED
NOT FOR PUBLICATION JAN 29 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50036
Plaintiff - Appellee, D.C. No. 2:13-cr-00094-JLS-2
Central District of California,
v. Los Angeles
ANTONIO QUEVEDO, AKA Kora, AKA
Korita, MEMORANDUM*
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 14-50176
Plaintiff - Appellee, D.C. No. 2:13-cr-00094-JLS-1
Central District of California,
v. Los Angeles
ADELINA CRISTOBAL
MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Judge Josephine L. Staton, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted October 20, 2015**
Pasadena, California
Before: PREGERSON and CALLAHAN, Circuit Judges, and BASTIAN, District
Judge***
Defendant Adelina Cristobal appeals the 108-month sentence imposed after
she pleaded guilty to Conspiracy to Use Interstate Commerce Facilities in the
Commission of Murder-for-Hire, in violation of 18 U.S.C. § 1958(a); Defendant
Antonio Quevedo appeals the 84-month sentence imposed after he pleaded guilty
to the same crime. Both defendants assert the district court erred in applying
U.S.S.G. § 2D1.4(a)(2)’s cross-reference to U.S.S.G. § 2A1.5(a)(1), which resulted
in a 5-level increase to the base offense level. In addition, Defendant Cristobal
argues that her sentence is unreasonable. Because the district court properly
applied the cross-reference, and because Defendant Cristobal’s 108-month
sentence is reasonable, we affirm.
Defendants’ arguments are foreclosed by our recent decision in United
States v. Temkin, 797 F.3d 682 (9th Cir. 2015). In that case, we held the correct
**
This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Stanley A. Bastian, United States District Judge for
the Eastern District of Washington, sitting by designation.
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base offense level for a conviction for Using Interstate Commerce Facilities in the
Commission of Murder-For-Hire, in violation of 18 U.S.C. § 1958 was 37, which
was computed by using the cross-reference contained in U.S.S.G. § 2E1.4(a)(2),
applying U.S.S.G. § 2A1.5’s base offense level of 33, and adding four levels for
the exchange of money (the pecuniary enhancement).1 Id. at 695. As the district
court calculated the Guideline range in the same manner, it did not commit
procedural error.
Defendant Cristobal appeals her sentence of 108 months imprisonment. The
district court’s factual findings are entitled to deference. United States v.
Ferryman, 444 F.3d 1183, 1186 (9th Cir. 2006). It concluded that Cristobal was
the driving force behind the murder-for-hire conspiracy, and the record supports
this conclusion. Ultimately, the district court sentenced Cristobal to 12 months
below the Guideline range to reflect, in part, her lack of criminal history and her
acceptance of responsibility. Cristobal’s sentence of 108 months is not
1
As a general rule, one three-judge panel cannot reconsider or overrule the
decision of a prior panel unless it is clearly irreconcilable with an intervening
higher authority. United States v. Jefferson, 791 F.3d 1013, 1016 n.2 (9th Cir.
2015). Once a panel resolves an issue in a precedential opinion, the matter is
deemed resolved, unless overruled by the court itself en banc, or by the U.S.
Supreme Court. Hart v. Massanari, 266 F.3d 1166, 1171 (9th Cir. 2001).
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substantively unreasonable, in light of all of the 18 U.S.C. § 3553(a) factors and
the totality of the circumstances.
Additionally, the imposition of the three years of supervised release was not
plain error. “[R]eversal is warranted only where there has been (1) error; (2) that is
plain; (3) that affects substantial rights; and (4) where the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” United States v.
Pelisamen, 641 F.3d 399, 404 (9th Cir. 2011). To determine whether the court’s
error affected “substantial rights” we ask whether “the probability of a different
result is sufficient to undermine confidence in the outcome of the proceeding.”
United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
The Guidelines recommend no supervised release for deportable aliens
likely to be deported when the statute of conviction does not require it, unless the
judge “determines” that supervised release would “provide an added measure of
deterrence and protection.” Sentencing Guidelines § 5D1.1(c) & cmt. n.5. There is
no record of the judge making that determination.
Here, the failure of the judge to make a record of the supervised release
determination did not affect Cristobal’s substantial rights. At the time of the
sentencing hearing, it was not clear that Cristobal would be deported given that her
daughter and husband lived in the United States and depended on her for their
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medical care. Had the error been brought to the court’s attention, there is no doubt
the result would have been the same.
We AFFIRM, but direct the district court to amend the written judgment to
reflect that Defendant Cristobal was convicted of Conspiracy to Use Interstate
Commerce Facilities in the Commission of Murder-For-Hire. See Fed. R. Crim. P.
36 (“After giving any notice it considers appropriate, the court may at any time
correct a clerical error in a judgment, order, or other part of the record, or correct
an error in the record arising from oversight or omission.”).
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